Duffy stands by threat of prosecuting city workers
if Del Mar medical pot issue passes in November

San Diego 
It’s no hoax: U.S. Attorney Laura Duffy is being accused by the American Civil Liberties Union of trying to meddle in local politics by saying Del Mar city workers could face prosecution if voters there approve a November ballot measure allowing medical marijuana dispensaries.

David Loy, legal director for the ACLU of San Diego & Imperial Counties, wrote in an Aug. 2 letter to Duffy that threatening prosecution for city employees amounts to “unjustified interference in local legislative matters.”

Loy said Duffy’s assertion also is legally wrong — and that court cases have said public employees are immune from prosecution when doing administrative tasks required under medical marijuana laws. He called on Duffy to retract the statement.

But the U.S. attorney for San Diego said she stands by the letter, which she sent in response to a query from Del Mar city lawyers.

In the July 17 letter, Duffy reiterated that under federal law marijuana is an illegal drug and individuals who grow, possess or distribute it are breaking the law.

“I respectfully disagree with the ACLU’s analysis of federal and state law in this context, and would note that the guidance I provided to the Del Mar City Attorney’s Office is guidance that has consistently been taken by numerous United States Attorney’s Offices around the country as well as the Department of Justice,” she said in a statement this week.

The debate is the latest example of the clash between state and federal law over medical marijuana. State law allows medical marijuana use, but it remains illegal under federal law.

Duffy and other federal prosecutors in California led a crackdown in October on dispensaries around the state, saying they were operating illegally. In San Diego, most have closed.

Last week, Duffy was the target of an elaborate hoax by medical marijuana supporters who sent out bogus news releases ostensibly from her office, with one declaring she was cracking down on legal pharmacies dispensing prescription medication. She is considering prosecuting them for impersonating a federal officer.

In Del Mar, proponents of medical marijuana gathered signatures to place a measure on the ballot to allow dispensaries in the city.

In June, when the City Council was deciding whether to include it on the ballot, city lawyers sent a letter to Duffy asking questions, including whether city employees could be prosecuted for issuing business permits or paperwork for the dispensaries if the measure passed.

Duffy responded that public employees who “conduct activities mandated by the ordinance are not immune” under federal law.

Loy contends that statement is wrong, and in his letter pointed to several cases in which courts have said public employees are protected.

Thomas Jefferson School of Law professor Alex Kreit said a federal law also protects workers. Kreit, the former head of San Diego’s medical marijuana task force, said that law was written to protect from prosecution undercover police officers who may have to possess or consume drugs.

Kreit said that courts in California and Oregon have said the law applies to public employees, too.

However, he said, letters similar to the one Duffy sent to Del Mar have been sent by federal prosecutors in other states where medical marijuana laws are being considered.